Late filing motion granted in claim alleging negligent design and construction of Thruway. Despite passage of time since the accident, the court found that defendant would not suffer substantial prejudice and claimant's unrefuted expert submissions were sufficient to find the appearance of a meritorious claim.
|Claimant short name:||STEINER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY|
|Footnote (defendant name) :|
|Motion number(s):||M-77020, M-77123|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||FITZGERALD & FITZGERALD, P.C.
By: John M. Daly, Esq.
|Defendant's attorney:||ANDREW M. CUOMO, ATTORNEY GENERAL
By: Vincent Cascio, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 4, 2009|
|See also (multicaptioned case)|
Claimant seeks permission pursuant to Court of Claims Act section 10(6) to file a late claim arising out of an August 11, 2006 accident on the New York State Thruway in Yonkers allegedly arising out of the negligence of defendants in the design, construction and maintenance of the Thruway in this area (near Mile Marker 0.5). Claimant alleges he was operating his motorcycle southbound in the left lane when he collided with a vehicle that was stopped due to an accident and blocking traffic. The proposed claim and the papers submitted in support of the motion allege negligence with respect to:
"a chain link fence that was installed/erected above the median barrier for several hundred feet continuously to the north of the point of collision, in such a manner as to block the sight line of the Claimant (who would have been able to observe stopped traffic ahead of him, around a left-handed curve in the roadway, and a downgrade of a roadway surface, but for the presence of the fence) and to reduce stopping sight distance, [creating] a hazardous condition whereby visibility on the roadway for motorists proceeding southbound was unreasonably restricted"
Proposed Claim, ¶ 2).
The application is supported by voluminous exhibits including affidavits from Lawrence M. Levine, P.E., a highway safety engineer and Gregory Witte, a police officer who is trained as an accident reconstruction expert and also operates a private accident reconstruction practice, as well as allegedly applicable standards and portions of the contract and plans for construction of the area in question.
Court of Claims Act section 10(6) grants the court the discretion to allow the filing of a late claim upon consideration of all relevant factors, including whether claimant's delay was excusable, whether defendant had timely notice of and the opportunity to investigate the pertinent allegations, whether defendant would suffer substantial prejudice should the motion be granted, whether the proposed claim has the appearance of merit and whether claimant has an alternate remedy. Additionally, an application pursuant to the statute must be made prior to the expiration of the underlying statute of limitation, in this case the three-year statute of limitations applicable to negligence actions. As the subject accident occurred on August 11, 2006 and the motion was served on July 23, 2009, it is properly before the court, regardless of the fact that if the motion is granted the claim will necessarily be served and filed more than three years after accrual (CPLR 2211; Thompson v State of New York, 258 App Div 758; Johnson v State of New York, 131 Misc 2d 630; Jenkins v State of New York, 119 Misc 2d 144).
Claimant advises that his prior counsel served a "Notice of Claim" on the Attorney General (by personal delivery) and the Thruway Authority (by Federal Express delivery) on November 6, 2006. The document - essentially a notice of intention to file a claim - was never filed with the Clerk of the Court. Claimant does not state when his current counsel was retained or explain what happened between November 2006 and the service of the instant motion papers. In any event, the document served in November 2006 did not serve to extend claimant's time to serve and file a claim against the Thruway Authority because it was served on that defendant by a method of service not authorized by the Court of Claims Act. Additionally, any extension that would have been obtained had the document been properly served (as it was against the State of New York), expired in August 2008.
The "Notice of Claim" alleges that claimant's motorcycle struck a vehicle in the left lane of the Thruway that had been involved in a prior accident and that defendants were negligent in not clearing the vehicles involved in the prior accident sooner and not posting warnings of their presence on the road. There were no allegations of negligent design and construction of the Thruway, the gravamen of the proposed claim.
Claimant's delay in properly instituting a claim - the result of his prior counsel's unfamiliarity with the proper procedure for instituting a claim in the Court of Claims - was not excusable within the meaning of the statute. However, this is only one of the statutory factors and tender of a reasonable excuse is not a necessary predicate to relief pursuant to section 10(6) (Bay Terrace Coop. Section Iv New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).
The court will discuss the interrelated factors of timely notice, opportunity to investigate and lack of substantial prejudice together. While defendants received timely notice of claimant's intention to sue by virtue of the service of the "notice of claim" within 90 days of the accident, that document alleged negligence only with respect to the management of the scene of the prior accident. It did not provide notice of the essential allegations of the proposed claim, relating to the design and construction of the Thruway, and did not afford the opportunity to investigate those allegations. Nevertheless, the submissions before the court establish that the delay between November 2006 (when a proper notice of intention or claim should have been served) and July 2009 (when the instant motion was served) will have no effect on defendants' ability to investigate the allegations of the proposed claim.
Claimant's engineer, Mr. Levine, states that he has visited the accident scene on four occasions and also reviewed the planning, design and construction files for the subject area of the Thruway, as well as the plans for the 1979 work that involved reduction of the shoulder and installation of the chain-link fence on top of the median barrier. He states, with reference to the relevant AASHO (1) standards, that installation of the fence resulted in reduction of the stopping sight distance for motorists in the left southbound lane from over 600 feet to 400 feet, below what is prescribed by AASHO, and rendered the highway unsafe for travel at the design speed of 60 m.p.h. His opinion is that the installation of the fence was negligent and inconsistent with sound engineering practice and applicable design and safety standards and that defendants were further negligent in not installing a "Limited Sight Distance" sign allegedly required by the Manual of Uniform Traffic Control Devices. He also found no mention of any study or investigation concerning that changes to the highway that would result from the installation of the fence and could ascertain no reason for the installation of the fence. Mr. Levine concluded that the subject accident would not have occurred but for the allegedly negligent installation of the fence.
Although defense counsel alleges that claimant's failure to properly and timely interpose a claim will result in substantial prejudice to defendants should this motion be granted, no facts are presented in support of this conclusion and the court cannot agree that the delay from November 2006 to July 2009 will prejudice defendants' ability to defend the claim. The allegations of negligence relate solely to (1) the installation of the chain-link fence in 1979 and whether such installation violated standards applicable at the time and (2) the 1986 resurfacing project that allegedly should have included erection of a Limited Sight Distance sign as required by standards applicable at that time. All of the plans and studies relating to both of these projects still exist and were reviewed by claimant's expert. There is no indication in defendants' opposition papers, which consist solely of an affirmation of counsel, that the State engineers and other employees involved with these two projects were available in 2006 and are not available in 2009. Counsel merely assumes that the passage of almost three years from the accident date would dim the memories of the participants and make investigation more difficult. However, there does not appear to be any factual dispute as to how the accident occurred. Accident Reports indicate that at 7:01 a.m. on the date in question a vehicle driven by Joseph Colello rear-ended another vehicle in the left southbound lane of the Thruway at MM 0.5. At 7:28 a.m., claimant's motorcycle struck the Colello vehicle in the rear and claimant was ejected from his motorcycle, struck the pavement and was attended to at the scene by Dr. Kevin D. Croy. Defendant identifies no dispute as to these facts, and the recollections of the drivers other than claimant are not germane to any issue in the case. What is at issue here are decisions made by defendants' employees in 1979 and 1986 and relevant standards applicable at those times. Given that all of the relevant plans and studies remain in defendants' files, the court agrees with defense counsel's assertion that the claim will "largely be based on 'expert witness' interpretations of what occurred many years ago"; exactly the same as if claimant had served a proper claim or notice of intention within 90 days of the accident.
As to the apparent merit of the claim, claimant's burden is to demonstrate that the proposed claim is not patently groundless, frivolous or legally defective and that from a review of an entire record, there is a reasonable basis to believe that a valid cause of action may exist (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 ). Defendants have submitted nothing to contradict the allegations of claimant (that he applied his brakes as soon as he saw the vehicle stopped in front of him but was unable to stop his vehicle in time and that his view around the curve was obstructed by the chain-link fence) or those of claimant's experts (that the presence of the fence and the lack of a warning sign violated specifically identified applicable standards), electing instead to oppose the motion solely with an affirmation of counsel containing only legal argument. Since "[f]acts stated in a motion for leave to file a late claim . . . are deemed true for purpose of [the] motion, when not denied or contradicted in opposing affidavits" (Sessa v State of New York, 88 Misc 2d 454, 458 , affd 63 AD2d 334 , affd 47 NY2d 476 ; see also Cole v State of New York, 64 AD2d 1023, 1024 ), the court must accept that claimant has demonstrated the arguable merit of his claim within the meaning of the statute.
Finally, the court notes that claimant has no alternate remedy notwithstanding defendants suggestion of a legal malpractice action against claimant's former attorneys (a suggestion that necessarily encompasses the conclusion that the proposed claim is at least arguably meritorious).
Accordingly, after balancing the statutory factors, the court finds that the mix of circumstances presented by this case falls within the remedial purposes of section 10(6), which was enacted in 1976 so as to vest in the Court of Claims broader discretion than previously existed to permit late filing, based on the strong concern that litigants with potentially meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988 ; Plate v State of New York, 92 Misc 2d 1033) ).
In this case, in which both sides agree that the dispositive testimony will be that of the experts, the State is in a position substantially identical to the one it would have been in had the claim been properly filed in 2006. The court finds this lack of prejudice to be a compelling factor in this decision. Accordingly, the motion is granted. Claimant may serve and file his claim, in accordance with all of the provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, including payment of the filing fee, within 30 days of the filing date hereof.
It additionally appears that after making the motion for permission to late file but prior to submission of the motion, claimant went ahead and served and filed a claim (Claim No. 117210, served July 31, 2009, filed August 3, 2009). That claim, apparently identical to the proposed claim on the late filing motion, was served without authorization of the court and was clearly late (Court of Claims Act section 10) and, given defendant's timely dismissal motion, is jurisdictionally defective. Defendant's motion to dismiss Claim No. 117210 is granted. The court notes that the filing fee paid for that claim may not be applied to the claim to be filed pursuant to the permission granted herein.
December 4, 2009
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Motion No. M-77020
Notice of Motion, Affirmation, Affidavits and Exhibits
Affirmation in Opposition
Reply Affirmation and Affidavit
Motion No. M-77123
Notice of Motion, Affirmation and Exhibits
Affirmation in Opposition and Exhibits
1. American Association of State Highway Officials.